49 F. 833 | U.S. Circuit Court for the District of Eastern Wisconsin | 1892
(after stating the facts as above.') The record presents for consideration several grave and important questions: First. Whether it be competent for the judicial tribunals to review the action of the executive of Illinois in issuing his warrant. Second. If his action be subject to review, whether that action can be inquired into after the surrender of the alleged fugitive from justice, and when he is held under state process. Third. Whether the petitioner was a fugitive from justice. Fourth. Whether, assuming the legality of the proceeding for his rendition, he can be held or tried upon any other charge than that for which he was surrendered.
Undoubtedly, as between independent sovereignties, the surrender of fugitives rested merely in comity, and was confined to those whose crimes “touched the state,” or were so enormous as to make them hostes humani generis. Vattel, book 1, c. 19; Vattel, book 2, c. 6. If there existed any moral obligation, it was quite imperfect, and was not recognized by the law of nations. The surrender could not be demanded as of right; but as Mr. Marcy observes in his Hulsemann letter, “comity may sometimes yield what right withholds.” So, also, before the Revolution, a criminal fleeing from one colony found no protection in another. He was arrested wherever found, and sent for trial to the place of his offending; and this without formal compact, treaty, or agreement between the colonics. Com. v. Deacon, 10 Serg. & R. 129. In all such cases the manner in which he was brought within the jurisdiction could not be pleaded by the prisoner as a defense to the crime with which he was charged, or as ground for his discharge without trial. Each sovereignty had the right to determine for itself whether a fugitive from the justice of another sovereignty should find refuge within its jurisdiction; and, if it so pleased, to deliver the fugitive to the sovereignty whose justice he had offended. Every independent nation possesses, in absence of positive law, or of treaty obligation, the inherent right of expulsion of undesirable inhabitants. So, also, the prisoner could not rightly urge, by way of defense or in abatement, that he was forcibly and by abduction brought within the jurisdiction- from a foreign country. The violation of the sovereignty of an independent nation is matter which touches the political relations of the two countries, and is of no concern to him. He may have, it is true, recourse in the law for the forcible abduction, but the manner of his subjection to the jurisdiction does not impair that jurisdiction, nor avail the prisoner against responding for his offense. Ex parte Scott, 9 Barn. & C. 446; State v. Brewster,
The question of interstate rendition rests, however, upon different ground. The slates are not, in respect to the surrender of fugitives, in-' dependent sovereignties. They cannot contract with each other for such surrender. By the compact of union they have yielded their sov-1 ereignty in that regard to the federal government. Such rendition-of, fugitives can only be rightfully effected under the provisions of tho federal constitution, and the laws passed in pursuance thereof. That constitution provides (subsection 2, § 2, art. 4) that “a person charged in any slate with'treason, felony, or other crime, who shall flee from justice and he found in another state, shall, on demand of the executive authority of the state from which he fled, he delivered up, to be removed to the state having jurisdiction of the crime.” Whether, since the constitution, a fugitive forcibly abducted from one state and delivered into the jurisdiction of another can be held for trial in tho latter, may perhaps he an open question. In Mahon v. Justice, 127 U. S. 700, 8 Sup. Ct. Rep. 1204, such a case was presented to the supremo court. It was held by the court, Justice Bradley and Justice Harlan dissenting, that no right secured under the constitution of the United States had been violated by such abduction, and tho federal court could not interfere, “whatever effect may he given by the state court to the illegal mode in which the defendant was brought from another slate.” Notwithstanding some expressions in the opinion of the court which would
“Whenever the executive authority of any state or territory demands any person as a fugitive from justice of the executive authority of any state or territory to which said person has fled, and produces a copy of an indictment found or an affidavit made before a magistrate of any state or territory, charging the person demanded with having committed treason, felony, or other crime, certified as authentic by the governor or chief magistrate of the state or territory from whence the person so charged lias fled, it shall be the duty of the executive authority of the state or territory to which such person has fled to cause him to be arrested and secured, and to cause notice of the arrest to be given to the executive authority making such demand, or to the agent of such authority appointed to receive the fugitive, and to cause the fugitive to be delivered to such agent when he shall appear. If no such agent appears within six months from the time of the arrest, the prisoner may be discharged. All costs or expenses incurred in the apprehending, securing, and transmitting such fugitive to the state or territory making such demand shall be paid by such state or territory.”
It is apparent that the act provides no means to compel the performance of the obligation enjoined, and that the duty of the executive upon whom demand is made is imperative. Whenever the executive of a state shall demand any person as a fugitive from justice of the executive of the state to which such person has fled, and shall produce a copy of the charge, certified by the executive of the state from whence the person so charged has fled, it shall be the duty of the executive of ,the state to which such person shall have fled to cause his arrest and surrender to the demanding state. The certificate of the executive authority of the demanding state is conclusive as to the charge of crime. The executive of the state where the fugitive is found has no right to look behind it, or to question it, or to inquire into the character of the crime charged. Com. v. Dennison, 24 How. 66. Whether the person demanded be a fugitive from justice is a question of fact to be determined in the first instance by the executive of the state upon w'hom .demand is made, upon such evidence as he may deem satisfactory. Roberts v. Reilly, 116 U. S. 80, 95, 6 Sup. Ct. Rep. 291. But this investigation is purely ex parte, the demanded person having no right of opportunity to be heard. Here there was no finding by the executive in terms that Cook was a fugitive from justice. The recital in the writ is:
“ By ‘ law of the ¡and ’ is most clearly intended the general law, — a law which hears before it condemns, which proceeds upon inquiry, and renders judgment only after trial. The meaning is that every citizen shall hold his life, liberty, property, and immunities under the protection of the general rules which govern society.” Dartmouth College v. Woodward, 4 Wheat. 518.
It is essential to compliance with such executive demand that the person whoso surrender is demanded should be adjudged a fugitive from the justice of the demanding state. The decision of the executive is not conclusive of that fact. And so we are of opinion that the action of the executive is reviewable by federal tribunals, and that it is competent for the courts to determine whether in fact the demanded person is a fugitive from justice. In re Manchaster, 5 Cal. 237; Ex parte Joseph Smith, 3 McLean, 121; Jones v. Leonard, 50 Iowa, 106; In re Mohr, 73 Ala. 503; Hartman v. Aveline, 63 Ind. 353; Wilcox v. Nolze, 34 Ohio St. 520,521.
But it is said that here the petitioner has been rendered to the demanding state, and is now hold, not under the constitutional provision, but by virtue of state process. In other words, that the act of rendition has been consummated; that the federal process has spent its force, and is functus officio; that the writs of the state control the custody of the petitioner, and no federal question is hero involved. In respect of this question we are without the decisive guidance of the ultimate judicial authority. We are referred to but two cases in the subordinate courts, and in these cases the judges seem to have arrived at. opposite conclusions. In the Case of Noyes, 17 Alb. Law -T. 407, before Judge Nixon, of tho disr trict of New Jersey, it was held that a fugitive from justice, extradited from one state in the Union to another, maybe detained for prosecution, notwithstanding it may appear that the arrest under the rendition proceedings was without legal authority. In Tennessee v. Jackson, 36 Fed.
We are of opinion that the contention in behalf of the petitioner cannot be sustained. The vice of this position is in the assumption that the fact of flight is jurisdictional in the sense that executive action is void if, in point of fact, the demanded person be not a fugitive from justice. The power to act upon a given state of facts, and to decide whether that state of facts exists, constitutes jurisdiction. The decision therein is conclusive until properly set aside. The constitution and the act of congress have lodged with the executive of the state upon whom proper demand is made for one alleged to be a fugitive from justice the jurisdiction to determine whether the person so charged be such fugitive, and his determination is sufficient to justify the surrender. He has, by virtue of the law and of the action of the executive of the demanding state,
It was urged in argument that under such ruling there will exist opportunity for oppression; that the executive may he imposed upon by ex parte and false evidence, and the warrant bo iraprovidently issued; and that so it may happen, as was the case in Tennessee v. Jackson, supra,
If, however, we should prove to be in error in our conclusion, and the question of flight remains open for consideration notwithstanding the surrender under the warrant, we are persuaded that here the executive warrant was providently issued, and the surrender justified by the facts and the law.'
■ We come-now to the consideration of the question whether the petitioner was a fugitive from justice within the intendment of the constitution. In this connection it is insisted for the petitioner that it was impossible for him to have committed the crime charged against him, because it is conceded that he was not within the state of Wisconsin at the time of,- or voluntarily after, the receipt of the deposit charged, and could ■not therefore be a fugitive from justice. The law of Wisconsin (Rev. St. Wis. § 4541) renders it criminal for any officer, director, stockholder, cashier, teller, manager, messenger, clerk, or agent of any bank to accejff or receive on deposit or for safe-keeping any deposit of money when he knows, or has good reason to know, that such bank is unsafe or insolvent. In construing the act, regard must be had to the mischief sought to be prevented. The .purpose of the law is manifest. The act was designed to prevent fraudulent banking, and to protect the public from dealing with such unsafe or insolvent concerns. The manual receipt of the deposit is 'but one step, and the final step, in the consummation of the offense. There must precede the unsafe and insolvent condition the representation • of safety and solvency, and the knowledge of the unsafe and insolvent con- ■ dition. These are the essentials of the offense. The receipt of the deposit .may be by an innocent instrument of a guilty officer of the bank. It is a ' criminal act to hold out an insolvent bank as safe or solvent, effective tó ■the consummation of crime upon the receipt of the deposit. The open door of a bank is an invitation to depositors. The open door of a bank is- a representation to the public that the bank is safe and solvent. The keeping open, of a bank by the superintending officer or proprietor is an authority to his clerks to receive deposits. If the doors are opened for the purposes of business, with guilty knowledge by him of the unsafe or ■insolvent condition of the bank, and a deposit is. received by his agents, ■ it-'is received.by him. It was his act, for which he niust respond to the law. His actual presence at the time is unessential.. In contemplation of law, he is present by his agent deputed to perform the wrongful act he-has planned. It was his act .as certainly as though he personally received the deposit. State v. Caldwell, (Sup. Ct. Iowa,) 44 N. W. Rep. 700. • His will contributed to the wrong-doing, and he is responsible for the act-done by his.agent- by his authority, the same as though performed by' himself alone. It is because his will set the force in motion that wag' operative to crime. Thus, Mr. Bishop observes, one may commit
In Roberts v. Reilly, 116 U. S. 80-97, 6 Sup. Ct. Rep. 291, the supreme court defines the phrase “fugitive from justice,” and declares that, to be a fugitive from justice in the sense of the act of congress regulating the subject, “it is not necessary that the party should have left the state in which the crime is alleged to have been .committed, after an indict? ment found, or for the purpose of avoiding a prosecution, anticipated or begun, but simply that, having within a state committed that which by its laws constitutes a crime, when he is sought to be subjected to its criminal process to answer for his offense he had left its jurisdiction, and is found in the territory of another.” In other words, there need be in his departure from the state no element of conscious flight. It suffices that after the commission of the offense he has merely departed the jurisdiction of the state.
The question then recurs: Was the petitioner within the state of Wisconsin, within the intendment of the law, at the time of the commission of the alleged offense? In Ex parte Reggel, 114 U. S. 642-653, 5 Sup. Ct. Rep. 1148, it was ruled that the proof tendered the executive made a prima facie case of flight. There, as here, the statement was only that the person demanded “was a, fugitive from justice,” without statement of probative facts. In Roberts v. Reilly, supra, the supreme court — referring to the question of flight- — also declared that “the determination of the fact by the executive of the state in issuing his warrant of arrest upon the demand made on that ground, whether the writ contains a recital of an express finding to that effect or not, must be regarded as sufficient to justify the removal until the presumption in its favor is overthrown by contrary proof.” Presumably, therefore, this petitioner was a fugitive from justice. The onus is cast upon him to satisfy the court that he was not. He claims that it is conclusively established that he was not such fugitive, because he was not within the demanding-state at the time the deposit was made. He has certainly established that fact; but is that conclusive that lie was not a fugitive from justice? Or, to express the proposition differently, is one who within the jurisdiction hath set in motion the machinery for crime, and departs the jurisdiction before the consummation of the crime, a fugitive from justice? When the criminal act charged is one as to which it is essential that sev
The petitioner has not shown that the bank was not insolvent as charged. He has not shown that he was unaware of its condition. He has merely shown that he was a stockholder in the Park National Bank to the amount of $19,000; that that bank was improvidently closed, and has since paid its debts. He has not shown, however, that its capital was unimpaired so that his interest therein was intact. He has not shown that the Bank of Juneau or its owners possessed any means to
It is further urged that, being rendered by the executive of Illinois for trial upon the offense charged, Cook cannot bo held or tried upon any other charge until he has bad proper opportunity to return to the state of Illinois. It was held in U. S. v. Rauscher, 119 U. S. 407, 7 Sup. Ct. Rep. 234, that when one was extradited by the government of Great Britain, under a treaty, for trial upon the particular offense charged, he cannot lawfully be tried for any other offense; that ho is clothed with the right to exemption from trial for any other oflense, until he has had opportunity to return to the country whence he was ta’ken for the purpose alone of trial for the offense specified in the demand for his surrender. If the principles of extradition are applicable and controlling-in interstate rendition, this ruling must be held to determine the right of exemption, notwithstanding the decision of the supreme court oí Wisconsin in State v. Stewart, 60 Wis. 587, 19 N. W. Rep. 429. It is not essential, however, that we should at this time pass upon this question, as the petitioner must be remanded to the jurisdiction of the state court.